(Appellate Jurisdiction)





HKSAR Respondent
WAN CHI KAU (温枝球) Appellant


Before : Deputy High Court Judge Longley in Court

Date of Hearing : 9 September 2009

Date of Judgment : 9 September 2009




1. On 26 February 2009, the appellant was convicted by Mr A.B. bin Wahab after trial of dealing with goods to which the Dutiable Commodities Ordinance, Cap. 109 applied. The charge alleged that on 10 November 2008 jointly with a man called Wong Kwok Keung (D1) inside the room ina flat in Oak Street named in the charge, the appellant had dealt with 164,200 cigarettes to which the Dutiable Commodities Ordinance applied, otherwise then in accordance with paragraph (a) or (b) of that Ordinance.

2. On 9 March 2009, the appellant was sentenced to 15 months’ imprisonment for that offence. Following his conviction and sentencehe filed a Notice of Appeal against his conviction and sentence on 13 March 2009.

3. On 27 May 2009, the appellant filed Notice of Abandonment of his appeal against Conviction. Consequently his appeal against convictionwas marked dismissed. For reasons I have already given this morning I have refused his application to have his Notice of Abandonmenttreated as a nullity. The appellant has pursued his appeal against sentence.

4. In so far as that appeal is concerned essentially two grounds were put forward in the recent grounds of appeal. In the first ofthe two recent grounds of appeal, it was alleged that :

“The Learned Magistrate erred in Law in considering that the commission of the Kowloon City Magistrates offence whilst on bail wasan aggravating feature for sentence.”

5. Although Mr Swainston for the appellant has not elaborated on this ground in his oral submissions before me today, I think it rightthat I should deal with it.

6. The background to this allegation is that on 10 February 2009, while on bail for the present offence, the appellant committed twofurther offences of unlawfully dealing with goods to which the Dutiable Commodities Ordinance applied. A total of 75,200 cigarettes were involved. He pleaded guilty to those offences at Kowloon City Magistrates’ Court on11 February 2009 and was sentenced to 6 months’ imprisonment on each charge.

7. The magistrate in the current case was made aware of this when he came to sentence the appellant.

8. Having said that he considered a sentence of 15 months’ imprisonment after trial to be appropriate in this case, he later referredto these subsequent offences in these terms :

“In sentencing D2 [i.e. the appellant], the Magistrate at Kowloon City Magistracy did not take into account an aggravating factorviz. D2 committed the same type of offence whilst on bail in the Kwun Tong Magistracy case. It was not for me to re-sentence D2for offences already dealt with by my fellow Magistrate. In considering the overall culpability of D2, however, I considered thatI could take into account this aggravating factor. I considered that a total sentence of 21 months’ imprisonment properly addressedthe culpability of D2 for both cases. Even without the aggravating factor, I was of the view that an overall sentence of 21 months’imprisonment was neither wrong in principle nor manifestly excessive. I thus ordered the sentence I passed to run consecutivelyto the one D2 was already serving.”

9. Although the magistrate referred to these subsequent offences as an aggravating factor it is clear that he was not taking these subsequentoffences into account in deciding that a term 15 months’ imprisonment was appropriate for the instant offence, but consideringwhether some or all of the 15 months should run concurrently or consecutively to the sentence of 6 months’ imprisonment imposedon the appellant earlier.

10. After bearing in mind that the Magistrate in the Kowloon City Magistracy had not taken into account the fact that the offence beforehim had been committed while the appellant was on bail for the present offence, Mr bin Wahab, when considering the question of totality,not surprisingly took the view that the sentences imposed on two occasions should run consecutively to each other. There is nothingin this ground of appeal.

11. The second ground of appeal upon which Mr Swainston has addressed me in his oral submissions is that the sentence of 15 months’imprisonment was in any event too severe bearing in mind that the appellant’s co-defendant has been sentenced to 3 months’ imprisonmentat Kowloon City Magistrates’ Court after pleading guilty to the same offence before another magistrate and the sentence of 6 months’imprisonment imposed upon the appellant on 11 February 2009 in respect of the 75,200 cigarettes.

12. The magistrate was aware of this sentence passed on the appellant’s co-defendant. He said this :

“D1 pleaded guilty to the 1st and 2nd Charges before another Magistrate and was earlier on sentenced to a total of 3 months’ imprisonment (for a total of 168,400 cigarettes). D1 was very lucky. D2 [i.e. the appellant] had no right to partake of D1’s good fortune.”

13. Mr Swainston has frankly admitted that the sentence of 3 months’ imprisonment imposed on the appellant’s co-defendant was toolow and was a windfall. Nevertheless he submits that the appropriate sentence for the appellant for this offence should have beensomewhere between 9 and 12 months’ imprisonment.

14. I am satisfied that the sentence of 15 months’ imprisonment imposed by the magistrate to this offence cannot be criticized.

15. In Mok Chun Wing, HCMA727/2000, Stock JA said he considered a starting point of 14 months’ imprisonment was appropriate for a defendant who haddealt with 124,400 cigarettes other than in accordance with the requirements of the Dutiable Commodities Ordinance, when the defendant had no previous similar convictions.

16. In the instant case the appellant was convicted of dealing with 164,200 such cigarettes worth just over a quarter of a million dollars. What is more significant however is the fact that the appellant unlike the appellant in Mok Chun Wing is, in the words of the magistrate “a recidivist for this type of offence with 11 previous similar convictions”. In the pasthe had been sentenced to imprisonment for terms ranging from 14 days to 5 months. The previous sentences have apparently had nodeterrent effect on him.

17. The sentence of 15 months’ imprisonment was entirely appropriate in this case.

18. I am satisfied that it would be wrong in principle just because the appellant’s co-defendant has received what at least appearsto be an inappropriately light sentence to reduce the appellant’s sentence to an inappropriate level. The appeal against sentenceis therefore dismissed.

(P.K.M. Longley)
Deputy High Court Judge

Ms Ng Wing Hin Hermina, PP of the Department of Justice, for HKSAR

Mr Philip Swainston, instructed by Messrs Littlewoods, for the Appellant